Immigration advocates have taken three strikes, but they don’t believe they’re out. Instead, they plan to ignore the umpire. 

After the Senate parliamentarian shot down Democrats’ third effort to include immigration provisions in their sprawling social and climate spending bill, advocates entered 2022 united behind a bolder, more politically risky strategy: to convince Senate Democrats to disregard their chamber adviser. 

The end of 2021 saw a rift emerge within the immigrant advocacy community over the best strategy to push critical protections for undocumented immigrants through Congress for the first time in decades. 

Some groups adopted an all-or-nothing approach, arguing for nothing short of citizenship for millions of undocumented immigrants. After Senate Parliamentarian Elizabeth MacDonough rejected two such proposals, arguing that they didn’t comply with Senate budget rules, other advocates eyed a narrower option that would provide temporary protections but not citizenship. 

But in December, when MacDonough shut down that option as well, she ushered in “immediate full alignment” among organizers behind a plan to see her decision set aside, said Marielena Hincapié, executive director of the National Immigration Law Center.

“It became very clear literally within hours that we are all aligned on ensuring that the way to make sure that we get reform done this year — in 2022 now — is still through the Build Back Better, through the reconciliation process,” Hincapié said. “And the path toward that is absolutely by disregarding the parliamentarian.” 

Patrice Lawrence, co-director of the UndocuBlack Network, agreed that MacDonough’s latest decision had convinced more organizers, who previously fixated on finding an alternative that could pass muster with the parliamentarian, to ignore her opinion.

“More folks are now saying citizenship, more folks are now saying it has to be green cards, it has to be permanent protection,” Lawrence said. “They’re no longer negotiating against themselves.” 

Under the proposed “disregard” strategy, Senate Democrats would reinstate language in the bill that would update the so-called immigration registry to put some undocumented immigrants who have lived in the U.S. for more than a decade on a path to citizenship.

Forty-one Democratic senators would have to vote to sustain the parliamentarian-rejected language, though all 50 Democrats would be needed for final passage of the bill and to ward off any Republican-led amendments that would strip the immigration protections.

But advocates need Senate Democrats to actually take up the package, which recently took a back seat to efforts to strengthen voting rights and overhaul the filibuster after Sen. Joe Manchin III, D-W.Va., said he wouldn’t support the bill.

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Advocates are maintaining an internal whip count of Democratic senators who might vote to disregard MacDonough’s advice, according to a PowerPoint presentation, obtained by CQ Roll Call, that was shown on a call with immigrant advocates last month in the wake of MacDonough’s decision. 

“We have confidence that, given that this is the president’s domestic agenda, and that it really seeks to address structural inequities, that the overall package will move forward,” said Lorella Praeli, co-president of Community Change. 

‘Fragmented’ opinions

Still, some differences of opinion on the best path forward remain within the advocacy community. While many — and perhaps more — organizations are pushing Democratic senators to disregard MacDonough’s rulings, others within the movement are unsure of that strategy, given the bill’s current standing. 

Advocates have tried for nearly a year to usher through long-awaited immigration protections in Democrats’ $2.2 trillion reconciliation bill, which can pass with a simple majority vote. However, they’ve yet to propose language that can pass muster with the parliamentarian. 

The repeated rejections from MacDonough divided advocates. Some threw their weight behind temporary protections, while others maintained that anything less than citizenship wasn’t enough. 

“The advocacy response to this has become increasingly fragmented between those who are going to try to secure some sort of victory out of this process, and those who still want to get what they wanted at the beginning of it, which is a path to citizenship,” said Cris Ramón, an independent immigration consultant who has worked with the Migration Policy Institute, the Bipartisan Policy Center and others.  

The advocacy movement initially pursued both strategies; Senate Democrats presented a third option to MacDonough, which would have provided temporary work permits and deportation protections to some undocumented immigrants, but not a path to permanent status. Meanwhile, grassroots groups held rallies on Capitol grounds calling for citizenship. 

“I think that many groups felt if we downgrade the status, maybe this is going to appease her perspective,” said Angelica Salas, executive director of the Coalition for Humane Immigrant Rights, which pushed Democrats for months to disregard MacDonough’s decisions. 

“And now that they’ve seen that that is not going to change her mind in any way … I think everybody just said, ‘No, it doesn’t matter how much more downgraded the status is, she’s still going to say no.’”

While united in their goal to put undocumented immigrants on a path to citizenship, some advocates quietly worry that the Democratic caucus lacks the votes needed to advance immigration provisions this way. 

Ramón also questioned the strategy’s feasibility, noting that Democrats hold the slimmest of majorities in the Senate, and that Manchin has signaled that he would oppose efforts to override a parliamentarian’s opinion. 

“The question that I think needs to be asked of these groups is: Is it really politically viable for us to rely on a strategy where we have the fewest concessions on policies we disagree with, and what can we learn from this?” Ramón said. “I think that’s a reflection that needs to be done.”

With midterm elections approaching, giving Republicans the chance to gain control of one or both chambers of Congress, Democrats’ window to pass legislation as the majority party is quickly closing. 

“That puts a tremendous amount of pressure on the White House and the administration to take action outside of the legislative sphere to work to protect as many people from enforcement action and deportation through very tailored executive actions,” said Jorge Loweree, policy director at the American Immigration Council.

Though Senate Democrats’ eyes are currently elsewhere, the immigrant advocacy movement plows forward with events. An immigration “week of action” was scheduled in late January, along with virtual lobbying visits to congressional offices in February, according to a January presentation to other advocates. 

In addition to legislative advocacy, advocates will also push the Biden administration to scale back immigration detention, expand temporary humanitarian protections to people from nations in conflict and reopen the border to asylum claims. 

The idea has already drawn support from the Democratic caucus. Nearly three dozen Democratic senators called on Biden administration officials in a Jan. 10 letter to expand temporary protections for immigrants from El Salvador, Honduras, Nicaragua and Guatemala. 

“There’s a lot of unity around wanting to get something done,” said Praeli. “There’s a lot of unity around using every tool and lever that we have to see it through. It comes down to questions of political will and the Democrats’ ability to organize themselves and their caucus.”